Is There a Judicial Remedy in Ohio for Jury Nullification?

by Judge James L. Kimbler

One of the standard instructions that judges give to juries in Ohio is that the jury must follow the law as it is given by the court. The language in the charge goes something like this, "You are not permitted to change the law or to apply your own idea of what you think the law should be. You must accept and apply the law as it is given to you in these instructions."

This has long been the law in Ohio. In 1842 the Ohio Supreme Court handed down the decision of Montgomery v. Ohio, 11 Ohio 424. In that decision the Court wrote that if a jury were to decide a question of law contrary to the trial judge's instructions, the jury would be committing a "public wrong" and violating its oath of office.

What happens, however, if the jury doesn't follow the trial judge's instructions? What if it decides to apply its own conception of what it thinks the law should be? Is there anything that a trial judge could do if this failure was brought to his or her attention? Is there a judicial remedy for what the Ohio Supreme Court referred to as a "public wrong"?

In a criminal case, a jury returns a general verdict. If the general verdict is one of "not guilty", then the verdict is final and there is the constitutional bar of Double Jeopardy. In Ohio, courts have declared that while juries don't have the right to decide not to follow the law, they have the power to make such a decision.

This was explained by Judge William Baird of the Court of Appeals for the Ninth Appellate District in State v. Culmer, 1984 Ohio App. Lexis, 11437, in the following language:

"Culmer maintains that a proper response to the jury's third question called for the judge to advise the jury of its inherent right to disregard the letter of the instructions and to reach a verdict based upon its collective conscience. This theory is historically known as jury nullification. See, Scheflin, Jury Nullification: The Right to Say No, 45 S. Cal. L. Rev. 168 (1972) Such a specific instruction is no longer recognized and is not necessary. See, United States v. Simpson (C.A. 9, 1972), 460 F. 2d 515; United States v. Wiley (C.A. 8, 1974), 503 F. 2d 106. Rather this theory is now viewed as the exercise of the jury's prerogative to acquit the defendant and no reason or justification is called for."

So, while a jury can ignore the law and acquit a defendant, a defendant doesn't have the right to ask the jury to do so, and the trial court doesn't have any obligation to so instruct the jury, and, indeed, is under an affirmative duty not to give such an instruction. .

If a trial jury in a criminal case did ignore the law, and if it returned a verdict of not guilty, and later the State found out that jury nullification had occurred, there would not be any way for the State to set aside the verdict and retry the defendant for that particular offense. Such a retrial would be barred by the Double Jeopardy Clause found in the Constitutions of the United States as well as the Ohio Constitution.

What if, however, the jury returned a verdict of "guilty" and later the defendant and/or defense counsel found out that the jury had ignored the judge's instructions? Could such a defendant seek a new trial, or file a motion to have the verdict set aside?

Ohio follows the rule that a juror cannot impeach the verdict of a jury. In State v. Hessler (2000), 90 Ohio St. 3d 108, 2000 Ohio 30, the defendant attempted to impeach the jury's verdict using affidavits from a juror and a alternate juror. The Ohio Supreme Court wrote the following:

"The trial court did not err in refusing to consider this evidence. A firmly established common-law rule flatly prohibits the admission of juror testimony to impeach a jury verdict. State v. Robb (2000), 88 Ohio St. 3d 59, 79, 723 N.E.2d 1019, 1043. Reflecting that principle, Evid.R.606(B), the aliunde rule, governs the competency of a juror to testify at a subsequent proceeding concerning the original verdict."

Although State v. Hessler is a criminal case, the same common law rule applies in civil cases, as, of course, does Evid. R.606 (B). An example of the rule being applied in a civil case is Grundy v. Dhillon (2008), 120 Ohio St. 3d 415, 2008 Ohio 632.

In Grundy, supra, the Ohio Supreme Court explained that not only does Evid.R.606(B) prohibit a juror from impeaching a verdict by relating what happened during deliberations, but it also prevents a juror from impeaching a verdict by relating what took place among the jurors prior to deliberation.

Evid.R.606 (B) does allow impeachment of a verdict if there was "extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror..." Such evidence must first come from a source other than the jurors themselves. Once such a foundation is laid, then members of the jury panel could testify as to such "prejudicial information" or such "outside influence".

An example of such evidence is found in the case of Mazorra v. H. Meyer Dairy Co., 1999 Ohio App. LEXIS 975, In that case, the Court of Appeals for the Twelfth Appellate District found that an affidavit of a non-juror as to the prejudice and bias of a juror toward the plaintiff would allow the trial court to consider the testimony of the jurors as to what role this bias or prejudice played in the jury's verdict. The appellate court found that the juror's alleged bias could be "extraneous prejudicial information" as that term is used in Evid.R.606(B).

The question becomes, of course, whether a decision by a jury to ignore the judge's instructions of law is either "extraneous prejudicial information" or "outside influence"?

The view expressed by Judge Baird in State v. Culmer, supra, has found support in other appellate decisions. The Court of Appeals for the Tenth Appellate District, for example, in Cleveland Construction, Inc. v. Ohio Public Employees Retirement System, 2008 Ohio 1630, in P 38 referred to jury nullification as a "trial jury's inherent right to disregard its instructions." :

The language of the Tenth Appellate District decision is even stronger than the language used by Judge Baird. Judge Baird spoke of the jury's "prerogative", the Tenth District used the words "inherent right." Whatever term is used, the law seems to be that even if a trial judge had evidence from outside the jury room that a jury had consciously decided to ignore the law in returning a verdict, Ohio law may not allow that trial judge to set aside the verdict.

This situation has bothered at least one court. . In an appeal resulting from a criminal conviction, the Court of Appeals for the Sixth Appellate District wrote the following:

"The courts are more unfettered in their judicial approach toward recognition of actual jury misconduct in criminal cases. A more flexible rule consonant with reality and attaining justice should be composed for a murder verdict independent of the aliunde requirement. Upon conviction of murder by a jury, consideration by the jury of circumstances not admitted into evidence in their deliberations in reaching a verdict may be proven by affidavits of the jurors themselves upon motion of defendant for a new trial based upon jury misconduct." (State v. Smith, 1975 Ohio App. LEXIS 7157 )

A check using the Shepard's citation system on Lexis, however, does not show any other cases in which the above rule has been adopted.

So, to answer the question posed in the title of this article, it would seem that the power of a trial judge to set aside a verdict because a jury engaged in jury nullification is very limited. In a criminal case where there was an acquittal, the power is non-existent, because of both constitutional concerns and the common law.

In criminal cases where there is a conviction, there is obviously not a constitutional issue, but both the common law and Evid.R.606 (B) limit a judge's power to set aside a verdict because of jury nullification. The same restrictions apply in a civil case.

In the final analysis, then, the best protection that litigants have against jury nullification is the integrity of those who are called to jury service. Perhaps that as it should be, for the jury system depends on that integrity to function.